University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 8-24-2010 Terry Lynn Pennix Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov
BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF COMMERCE AND INSURANCE PRIVATE PROTECTIVE SERVICES IN THE MATTER OF: Terry Lynn Pennix DOCKET NO: 12.30-107413J INITIAL ORDER OF DEFAULT AND DISMISSAL This contested case hearing was set to be heard in person on August 24, 2010, in Nashville, Tennessee, before Joyce Carter-Ball, Administrative Judge, Administrative Procedures Division, assigned by the Secretary of State and sitting for the Commissioner of the Tennessee Department of Commerce and Insurance. Andrew H. Simpson, Staff Attorney for the Tennessee Department of Commerce and Insurance (the Department ) represented the Department. Respondent, Terry Lynn Pennix, was not present, nor was anyone present on his behalf. DEFAULT The Department moved that a default be entered against Respondent for failure to participate in the hearing after due notice. The Department introduced proof that reasonable attempts were made to notify the Respondent of the hearing set for August 24, 2010. Proof of service was made part of the record. It appearing that proper notice was sent to Respondent, and that Respondent failed to appear at the hearing, the State's
Motion for Default is well taken and is hereby GRANTED pursuant to TENN. CODE ANN. 4-5-309(a). See also RULE 1360 4 1.15(1) of the UNIFORM RULES OF PROCEDURE FOR HEARING CONTESTED CASES BEFORE STATE ADMINISTRATIVE AGENCIES. DISMISSAL The Motion for Default having been granted, the Petitioner was permitted to proceed uncontested, pursuant to TENN. CODE ANN. 4-5-309(a), see also RULE 1360 4 1.15(2). The issue presented for consideration at this hearing was the Department s petition to suspend or revoke Respondent s license, and/or the imposition of other lawful discipline. After consideration of the record and arguments of the Petitioner, it is ORDERED that Respondent's Armed Security License (License #: 206659) be REVOKED. This determination is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Respondent, at all times hereinafter relevant, holds armed security guard license number #206659; such license having been duly issued by the Tennessee Private Protective Services Program in 2000, and which expires on or about March 31, 2012. 2. On or about July 21, 2005, the Grand Jury Criminal Court of Shelby County, Tennessee returned an indictment against Respondent for Theft of Property Over $500, T.C.A. 39-14-103, a Class E Felony. 2
3. Respondent failed to notify the Commissioner in writing within thirty (30) days of the above-referenced indictment for Theft of Property Over $500. 4. On or about October 13, 2005, Respondent pled guilty to Theft of Property Under $500, a Class A Misdemeanor, in the Criminal Court of Shelby County, Tennessee. 5. Respondent failed to notify the Commissioner in writing within thirty (30) days of the above-referenced conviction for Theft of Property Under $500. 6. Respondent submitted a renewal application for his armed security guard registration on April 21, 2006, wherein he stated, in response to the first two questions, that he had not been arrested, charged, or convicted of any felony or misdemeanor in the state of Tennessee or any other state since the issuance or renewal of his armed security guard registration. 7. Respondent submitted a renewal application for his armed security guard registration on April 19, 2008, wherein he stated in response to the first two questions, that he had not been arrested, charged, or convicted of any felony or misdemeanor in the state of Tennessee or any other state since the issuance or renewal of his armed security guard registration. 8. On or about January 20, 2010, Respondent pled guilty to Theft of Property in the General Sessions Criminal Court of Shelby County, Tennessee. 9. Respondent failed to notify the Commissioner in writing within thirty (30) days of the above-referenced misdemeanor conviction for Theft of Property. 3
10. Respondent submitted a renewal application for his armed security guard registration on March 6, 2010, wherein he stated in response to the first two questions, that he had not been arrested, charged, or convicted of any felony or misdemeanor in the state of Tennessee or any other state since the issuance or renewal of his armed security guard registration. 11. Respondent thereby knowingly and willfully made material misstatements on his 2006, 2008, and 2010 renewal application in response to questions regarding whether or not he had been arrested, charged, or convicted of a misdemeanor or felony in the state of Tennessee or any other state since the issuance or renewal of his armed guard registration. 12. Respondent thereby failed to notify the Commissioner in writing within thirty (30) days of his arrest, indictment, and subsequent conviction for Theft of Property Under $500 on October 13, 2005 as required by T.C.A. 62-35-120(b). 13. Respondent thereby failed to notify the Commissioner in writing within thirty (30) days of his arrest and subsequent conviction of Theft of Property on January 20, 2010, as required by T.C.A. 62-35-120(b). 14. Respondent s two (2) separate convictions for Theft of Property in 2005 and 2009 are the type of misdemeanor convictions which reflect unfavorably on the fitness for his armed security guard registration, per T.C.A. 62-35-130(a)(4). 15. Respondent engaged in dishonorable, unethical, and unprofessional conduct of a character likely to deceive, defraud, or harm the public by and through his two (2) 4
separate convictions of Theft of Property in 2005 and 2009, per T.C.A. 62-35- 130(a)(6). CONCLUSIONS OF LAW 1. The Department bears the burden of proof in this matter, by a preponderance. 2. The Department has met its burden of showing that Respondent violated provisions of TENN. CODE ANN. 62-35-130(a)(1) and (a)(6), which provide that his license may be disciplined for violating any provision of this chapter and for engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public. In this regard, Respondent s two (2) separate misdemeanor convictions for Theft of Property in 2005 and 2009 constitute dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public. 3. The Department has met its burden of showing that Respondent violated provisions of TENN. CODE ANN. 62-35-130(a)(4), which provide that his license may be suspended or revoked for being convicted by a court of competent jurisdiction of any felony or misdemeanor, if the Commissioner finds that the conviction reflects unfavorably on the fitness for the license or registration card. In this regard, Respondent s two (2) separate misdemeanor convictions for Theft of Property in 2005 and 2009 reflect unfavorably on the fitness of his license. 4. The Department has met its burden of showing that the Respondent violated the provisions of TENN. CODE ANN. 62-35-120(b), which requires that a licensee provide written notice to the Commissioner of any arrest or resulting 5
conviction within thirty (30) days of the arrest or conviction. In regards to Respondent s first arrest/indictment on approximately July 21, 2005 for Theft of Property Over $500, Respondent failed to report such incident to the Commissioner in a timely manner. Respondent also failed to properly notify the Commissioner of his subsequent misdemeanor conviction on October 13, 2005 for Theft of Property Under $500. In regards to Respondent s second arrest in September 8, 2009 and subsequent conviction for Theft of Property on January 20, 2010, he failed to provide written notification of the arrest and conviction within thirty (30) days. Respondents violations of Tenn. Code Ann. 62-35-130(a)(1), (4), and (6) and Tenn. Code Ann. 62-35-120(b) constitute grounds for the revocation or suspension of the Respondents license and/or the imposition of a civil penalty pursuant to Tenn. Code Ann. 56-1-308(a) and 62-35-130(b) and the assessment of investigatory and hearing costs against the Respondents pursuant to Tenn. Comp. R. & Regs. Rule 0780-5-11-.01 [ASSESSMENT OF INVESTIGATORY AND HEARING COSTS]. It is CONCLUDED that the State has carried its burden of proof by preponderance of the evidence that the Respondent violated provisions of the rules promulgated by the Commissioner. WHEREFORE, it is hereby ORDERED AND ADJUDGED that Respondent, Terry L. Pennix, licensed as an Armed Security Guard (license no. #206659), previously issued by the Tennessee Private Protective Services Program, is hereby REVOKED. 6
Respondent is further ORDERED to pay a Civil Penalty in the amount of One Thousand Seven Hundred and Fifty Dollars ($1,750.00) and to pay all hearing and investigatory costs in this matter pursuant to Tenn. Code Ann. 56-1-308(a) and 62-35- 130(b) and the assessment of investigatory and hearing costs against the Respondents pursuant to Tenn. Comp. R. & Regs. Rule 0780-5-11-.01 [ASSESSMENT OF INVESTIGATORY AND HEARING COSTS] for which execution may issue if necessary. This Initial Order entered and effective this 9th day of September, 2010. Joyce Carter-Ball Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 9th day of September, 2010. Thomas G. Stovall, Director Administrative Procedures Division 7